Natural Resources Defense Council v. Costle

Nos. 2153-73, 75-172, -1267, -1698 (D.D.C. August 16, 1978)

Following litigation resulting in a settlement agreement requiring the Administrator of the Environmental Protection Agency to promulgate industry-by-industry limitations on discharges of toxic substances into navigable waters, counsel for the plaintiff environmental groups and industrial intervenors moved for attorney fees and costs under § 505 of the Federal Water Pollution Control Act. The court grants the motions of plaintiffs in amounts less than those requested and denies the motions of intervenors. Because the hourly rates sought by plaintiffs are within the $40 to $80 per hour range which is typical of fees charged in the locale, the court finds the requested rates reasonable. Fees claimed by plaintiffs for opposing motions to intervene are denied, however, because such oppositions is not the kind of enforcement activitiy which § 505 was designed to encourage and because the motions in opposition appear to have been an unnecessary supplement to the motions in opposition filed by the federal defendants. The government's assertion that hours allegedly spent by plaintiffs in preparation of various motions are excessive is rejected with the exception of one motion with respect to which the hours claimed are reduced by one third.Hours spent on telephone calls and conferences are reduced by one half. Certain claims by two attorneys for which there is no direct supporting documentation are found reasonable and sustained. Time spent in applying for fees and costs is compensable, but at only half the rate otherwise allowed.The court notes that two of the claimants have left private practice for government employment, making an award of fees to their organizational clients more appropriate than an award to the individuals. With respect to the claims of the industrial intervenors, the court finds that where intervention is on behalf of the defendants, fees may be recovered only to deter frivolous or harassing suits. Since the instant case was brought in good faith and yielded significant results, such an award is not allowed and the motions are denied.

Counsel for Plaintiffs
Ronald J. Wilson
810 18th St. NW, Washington DC 20036
(202) 628-3160

Counsel for Defendants
Ridgway M. Hall, Jr.
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Michael P. Carlton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2834

Counsel for Industrial Intervenors
Robert C. Bernard
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 223-2151

=P20881 Flannery, J.:

This matter comes before the court on motions of the plaintiffs, who are three environmental groups, by the American Mining Congress, and jointly by the Firestone and Union Carbide Groups of Intervenors, for attorneys fees and costs in relation to this lengthy environmental litigation. These three motions request varying levels of compensation, and all three have been accompanied by affidavits in support of the attorneys fees and costs claimed. The government admits that the plaintiffs are entitled to costs and a fee award in these cases, but disputes the amount of attorneys fees requested as excessive. The government totally [8 ELR 20882] opposes any award to the intervenor-defendants.

These cases are "citizen suits" brought pursuant to 33 U.S.C. § 1365(a)(2) to compel the Administrator of the Environmental Protection Agency to perform certain nondiscretionary acts in connection with § 307 of the Federal Water Pollution Control Act, 33 U.S.C. § 1317. After a period of some litigation and lengthy negotiations, a settlement agreement was reached in these cases in March 1976, and that settlement agreement has proved to be of very great significance in the subsequent administration of the Federal Water Pollution Control Act (hereinafter FWPCA). Numerous industrial groups attempted to intervene so as to participate in the proceedings which were to grow out of this settlement agreement. Although this court originally denied these intervention motions, the United States Court of Appeals for the District of Columbia Circuit reversed that decision and allowed intervention. See NRDC v. Costle, 561 F.2d 904 [7 ELR 20547] (D.C. Cir. 1977). These successful intervenors, along with the original plaintiffs, are the moving parties now before the court.

Congress provided for the awarding of attorneys fees and costs against the government in citizen suits brought pursuant to the FWPCA:

The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

33 U.S.C. § 1365(d) (Supp. V 1975). The Senate Public Works Committee, in commenting on this portion of the Act, stated:

Concern was expressed that some lawyers would use section 505 [codified as 33 U.S.C. § 1365] to bring frivolous and harassing actions. The Committee has added a key element in providing that the courts may award costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such action is in the public interest. The court could thus award costs of litigation to defendants where the litigation was obviously frivolous or harassing. This should have the effect of discouraging abuse of this provision while at the same time encouraging the quality of the actions that will be brought.

S. REP. NO. 92-414, 92d Cong., 2d Sess. 81, as reprinted in [1972] U.S. CODE CONG, & AD. NEWS 3668, 3747. It is against this background that the various motions and the oppositions must be assessed.

I. Plaintiffs' Motion

As indicated above, the government concedes that the plaintiffs in these actions de qualify for an award of attorneys fees and litigation costs. Although plaintiffs are all public interest legal groups with their own staffs of attorneys, it does appear that two of the four attorneys for whom fees are claimed are private practitioners retained by plaintiffs for the purpose of these lawsuits. Plaintiffs claim $996.64 in costs, all of which have been documented and none of which are in dispute. As for the attorneys fees, plaintiffs have chosen to claim specific amounts for each of the four attorneys employed on these cases, those four attorneys being Ronald Wilson, Barbara Graham, J. G. Speth, and Edward Strohbehn. The government has raised three objections which go to the substance of plaintiffs' attorneys fees petition. First, the government claims that the hourly rates claimed are excessive and not in accordance with prevailing local rates. Second, the government claims that plaintiffs are not entitled to any dreimbursement for work done in opposition to the motions to intervene in this suit. Third, the government asserts that the total hours claimed are generally excessive in light of the type of work done.¹ Each of these last three claims will be analyzed separately.

A. Prevailing Hourly Rates

Although the government objects to the hourly rates suggested by plaintiffs, the government has presented no concrete alternatives. However, the government does assert that the determination of the hourly rate is a matter within the discretion of the court, and that plaintiffs shoulder the burden of providing the validity of the rates claimed.

Both plaintiffs and the government have resorted to samplings and statistics to show the prevailing rate structure within the District of Columbia. The government particularly points out that the rates claimed do not match the comparatively short span of legal experience accumulated by the attorneys for plaintiffs. However, the government does concede that while the rates in the District range from $20 to $100 per hour, the rates most usually charged range between $40 and $80 per hour. All four of the attorneys for plaintiffs have claimed hourly rates which fit into this customary or normal group. Because of this, and because these attorneys do appear to have amassed a considerable amount of time and expertise in the area of environmental litigation, it does appear that the hourly rates claimed by plaintiffs' attorneys are reasonable and should be allowed to stand.

B. Hours Claimed for Time Spent Opposing Motions for Intervention

A significant portion of the time claimed by plaintiffs' attorneys was apparently spent in opposing the numerous motions for intervention both in this court and on appeal. Although the government also opposed these motions, plaintiffs now claim that the government should be compelled to pay costs and fees for what was essentially cumulative work. Plaintiffs' rationale for advancing this argument is that 33 U.S.C. § 1365(d) allows for the payment of any fees so long as they were accumulated in the public interest. The government argues that in opposing these motions after the government was already on record with its opposition, plaintiffs acted out of private, not public concerns.

Neither the Act nor its legislative history appear to contemplate a situation such as the one presented here. However, the policy decisions which led Congress to enact § 1365(d) do seem to indicate that an award of fees accumulated in opposition to these motions to intervene may be inappropriate. Congress' purpose in allowing for the payment of fees in citizen suits brought pursuant to the FWPCA was, as indicated above, two-fold. First, Congress sought to encourage the use of the citizen suit as a means of direct enforcement of the Act. Second, Congress felt that the existence of the attorneys fees provision would serve as a disincentive to the filing of frivolous or harassing suits. It does not appear that either of these two purposes would be accomplished by paying fees for the oppositions to the motions to intervene filed in these cases. The citizen suit permits individuals such as plaintiffs here to compel the Administrator of the Environmental Protection Agency to perform certain non-discretionary acts. Although the suits brought by plaintiffs do generally fit this mold, thereby entitling them to some fee award, the pleadings filed in opposition to the motions to intervene are of a different character. In the somewhat unique setting provided by this case, the government led the opposition to intervention. It would be anomalous to force the government to pay fees to plaintiffs when plaintiffs joined in this opposition. Since the oppositions to the intervention motions were made in concert with the government, and since attorneys fees are traditionally assessed only between adverse parties, the government should not be compelled to pay the fees claimed for these oppositions. Elimination of such payments would not subvert the purposes of the Act in the limited situation where the government and the plaintiffs have taken the same stance on a given issue. On the other hand, payment of these fees in such a situation may give rise to over-lawyering of cases which, though of great importance, are already complex and slow to proceed to judgment. Such a result would surely be contrary to the intent of Congress in authorizing citizen suits.

For these reasons, the court will subtract the following number of hours from the totals claimed by each attorney: Wilson, 105 hours; Graham, 21.75 hours; and Strohbehn, 23.25 hours. Mr. Speth's affidavit reflects that he spent no time on the intervention issue, and accordingly no time is subtracted from his total.

[8 ELR 20883]

C. Total Hours Claimed

The government asserts that the number of hours claimed by plaintiffs' attorneys is excessive and should be cut. Although the government does not indicate precisely the number of hours that may be excessive, it has indicated the areas in which cuts could be made. These four areas are: (1) the hours claimed for phone calls and conferences; (2) the number of hours claimed for the preparation of major pleadings; (3) the "reconstructed" hours claimed by Mr. Speth and Mr. Strohbehn; and (4) the time spent on the application for fees and costs.

1. Phone Calls and Conferences

The hours claimed for phone conversations and conferences with co-counsel by plaintiffs' attorneys are as follows: Wilson, 79.25 hours; Strohbehn, 11.25; and Speth, 8.5. In Parker v. Matthews, 411 F. Supp. 1059, 1067 (D.D.C. 1976), the court noted, in the context of a Title VII case, that attorneys, when seeking a "reasonable" fee, should not be compensated for inordinate amount of time spent on the telephone or in conference with co-counsel, and stated, "The Court finds that the time spent on legal research and more complex tasks should not be accorded the same weight as the time spent on the telephone and in conference." Id. In that case, the court discounted 20 percent of the fee award request to offset the excessive phone and conference time claimed. Id. Similarly, in Kiser v. Miller, 364 F. Supp. 1311, 1318 (D.D.C. 1976), aff'd in pertinent part, 517 F.2d 1237 (D.C. Cir. 1974), the court discounted 35 percent of the fee award due to excessive telephone and other conferences. In light of these precedents, it is apparent that the time spent on such conversations should not be accorded the same weight as time spent on research and legal drafting. In order to reflect this finding, the court will subtract the following number of hours from the totals of the respective attorneys: Wilson, 40 hours; Strohbehn, 6 hours; and Speth, 4 hours.

2. Preparation of Pleadings

The government alleges that the number of hours claimed by plaintiffs' attorneys for various filings in these cases are excessive. Specifically, the government claims that too much time has been claimed for the preparation of the complaints, the preparation of the opposition to the motion to dismiss in 73-2153, and the preparation of the motion for summary judgment and replies to the opposition thereto in 75-172.

As for the time spent on the complaints, although the hourly estimates are substantial, these were not, as the government contends, simple cases. Rather, the policy of the EPA in seeking to regulate only certain effluents at one time had to be analyzed in light of the Act and background research done to determine if indeed other controllable elements existed. Therefore, no time should be subtracted for this reason.

As for the time spent on the opposition to the motion to dismiss in 73-2153, the motion was filed on February 25, 1974, and after the granting of several extensions, the opposition was filed on April 1, 1974, approximately one month later. Wilson claims to have spent 111.75 hours and Graham 113.5 hours in preparing this opposition. In other words, in addition to the time spent by Mr. Speth (approximately 22 hours), both Graham and Wilson contend that they logged over two full work weeks each in preparing this opposition. Since the opposition was within the 35 page limit, it is possible that these time figures are unnecessarily high. This is not to say that the hourly logs kept by Wilson and Graham are false, but only that the plaintiffs cannot be compensated for all of that time when this court is required to fashion a "reasonable" fee award. In order to reflect these considerations, the court will reduce the total hours claimed by Wilson and Graham by 35 hours each, or approximately one-third of the time spent by each on the opposition to the motion to dismiss. The amount of time claimed by Mr. Speth for this opposition is reasonable and will not be altered.

As for the preparation of the motion for summary judgment and the replies to the opposition thereto in 75-172, Wilson has claimed 119.5 hours and Graham 77.75 hours. It appears that this motion required more factual research and analysis than the opposition to the motion to dismiss in 73-2153, which required primarily legal analysis. In addition the plaintiffs filed a lengthy reply memorandum to the oppositions to the motion for summary judgment, further increasing the work that was done. As such, and since the motion and reply period was stretched over a longer period of time than in 73-2153, no deductions are necessary.

3. Speth and Strohbehn Affidavits

Both Speth and Strohbehn have claimed relatively small amounts of time for which there are no direct underlying support documents such as time logs. These periods have been reconstructed in one way or another, and have been separated from the other time claims on that basis. Although the government disputes the propriety of this method of proceeding, the government has not disputed the actual amount of time claimed. Although this might be cause for concern if the entire fee request was lacking in direct verification, since the amounts claimed in this way are small, since they are contained in sworn affidavits, and since there is no evidence or argument impugning the validity of the amounts claimed, the court does not believe that any deductions are necessary.

4. Time Spent on Application for Fees and Costs

The government contends that plaintiffs are not entitled to any compensation for the time spent in preparing the instant fee and cost application. The government alleges that this court may only award a fee when such a fee is in the public interest, and that any fee application is preeminently for private benefit. It should be noted from the outset that it is well established in this Circuit that an attorney may be compensated for time spent in preparation of a fee application, albeit at a rate lower than that used to compensate him for work on the merits. Parker v. Matthews, supra, 411 F. Supp. at 1066-67; Kiser v. Miller, supra, 364 F. Supp. at 1318. As for the particular situation under the FWPCA, Congress has indicated that awards of attorneys fees in certain cases would be in the public interest. The government has conceded that the present cases are of the type in which such awards are appropriate. It would be anomalous then for this court to hold that plaintiffs should not be compensated for the time spent in applying for the fee at issue, since only by making such an application will such a fee ever be rewarded. In this case, the hours spent in preparation of the fee application have been listed separately by the plaintiffs' attorneys. Wilson has claimed 45.5 hours and Graham has claimed 53 hours. In accordance with precedent in this district, and in recognition of the fact that it does not take as much skill to prepare a fee application as to litigate the merits of a case, the court will allow compensation to Wilson and Graham at one-half the rate allowed for their work on the merits, that is, $40 per hour and $20 per hour respectively.

D. Summary of Award to Plaintiffs

To summarize, plaintiffs will receive the requested $996.64 in costs. In addition, plaintiffs will receive compensation for 778 hours worked by Ronald Wilson at a rate of $80 per hour, and 45.5 hours at a rate of $40 per hour. For work done by Barbara Graham, plaintiffs will receive compensation for 219 hours at $40 per hour, and 53 hours at $20 per hour. For work done by J. G. Speth, plaintiffs will receive compensation for 223.1 hours at a rate of $70 per hour. For work done by Edward Strohbehn, plaintiffs will receive compensation for 149.75 hours at $70 per hour. The total award to plaintiffs for costs and attorneys fees shall, therefore, be $100,976.14.

II. Motions of Intervenors

Two motions for awards of attorneys fees and costs have been filed by certain of the groups which intervened in these proceedings. One motion was filed by the American Mining Congress, which intervened in the consolidated cases. The other motion was filed jointly by two groups of intervenors in 2153-73 known collectively as the Firestone and Union Carbide Groups. These motions raise the issue of whether these parties, as intervenor-defendants, are entitled to an award under the terms of 33 U.S.C. § 1365(d).

As indicated earlier, § 1365(d) provides that a fee award may be made to "any party, whenever the court determines such award is appropriate." The intervenors assert that the provision for an award to "any party" indicates that such awards are to be freely given unless exceptional circumstances appear. Indeed, this is a [8 ELR 20884] broad fee award provision, leaving a great deal to the discretion of the court. However, in exercising this discretion, the court is not completely without guidelines. The legislative history of this provision indicates that it is not as broad as the intervenors would have this court believe.

As indicated earlier, the Senate version of this bill finally enacted as § 1365(d) contained the provision permitting the payment of attorneys fees in order to discourage the filing of frivolous or harassing suits. S. REP. NO. 92-414, supra, at 81, as reprinted in [1972] U.S. CODE CONG. & AD. NEWS at 3747. Specifically, the Senate Public Works Committee stated that in the presence of such a provision, "The court could thus award costs of litigation to defendants where the litigation was obviously frivolous or harassing." Id. The intervenors have argued that in this sentence, the Senate Committee meant only to provide one example of when a defendant would be entitled to an award. However, the House Committee on Public Works, in addressing the very same provision, was more direct:

Subsection (d) allows the court to award any party the costs of litigation, including reasonable attorney and expret witness fees, whenever the court considers this to be appropriate. Concern was expressed during the hearings that inclusion of a "citizen suit" provision would lead to frivolous and harassing legal actions. By permitting the court to award costs of litigation whenever it believes that it is appropriate to do so, the Committee is satisfied that defendants who were subjected to needless harassment or frivolous suits may be reimbursed for their expenses. This should have the effect of discouraging abuse of the "citizen suit" provision.

H. REP. NO. 92-911, 92d Cong., 2d Sess. 133-34, as reprinted in SENATE COMMITTEE ON PUBLIC WORKS, A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 (Committee Print, 1973) 820-21 [hereinafter LEGISLATIVE HISTORY]. The concern that the "citizen suit" provision not be abused was thus present in both the House and the Senate, and also surfaced during debate of the Act. See LEGISLATIVE HISTORY at 673-75 (remarks of Rep. Edmondson and Rep. Hosmer). Therefore, although the provision for the payment of attorneys fees and costs is a broad one, it is apparent that Congress intended that an award would be made to a defendant only in certain, rather limited circumstances. Intervenors here are defendants, and it cannot be said that they have been victims of any harassment or frivolous action.

Even if the court were to accept the intervenors' argument that § 1365(d) establishes a sort of "common benefit" rule for attorneys fees awards, it still appears that intervenors do not qualify under the terms of the Act. Although intervenors opposed the government on the issue of intervention, such intervention is not within the control of the EPA but within the power of the court alone to grant. A citizen suit, and by extension a fee award pursuant to a citizen suit, is possible only when a "citizen" within the meaning of the Act seeks to compel the Administrator to perform some non-discretionary duty pursuant to the Act. 33 U.S.C. § 1365(a)(2). Clearly, the decision regarding the propriety of intervention is not covered by the FWPCA. Furthermore, if the United States were made to finance all intervenors in all citizen suits, the intent of Congress to limit as much as possible any overburdening of the court system would be subverted. This is especially true:

in cases testing the validity of general industry regulations, where the number of interested participants and intervenors balloons exponentially, and consumer interests have relatively modest resources. The court [must be] concerned lest its approach [to awarding costs and fees] fracture an adversary system that is already under strain.

American Public Gas Association, et al. v. Federal Energy Regulatory Commission, et al., __ F.2d __, No. 75-2105 (D.C. Cir. August 9, 1978), slip op. at 4-5. Because this is a suit in which the intervenors are legion, and since intervention occurred only after most of the work had been done with regard to a resolution of the merits of this dispute, this court will deny the motions of the industry intervenors for fees and costs.

For these reasons, and upon consideration of the various motions for attorneys fees and costs, the memoranda submitted in support thereof and in opposition thereto, and the entire record now before the court, it is, by this court, this sixth day of August 1978,

ORDERED that plaintiffs' motion for attorneys fees and costs be, and the same hereby is, granted; and it is further

ORDERED that plaintiffs be, and hereby are, awarded collectively the sum of one hundred thousand, nine hundred seventy six dollars and fourteen cents, $100,976.14, which sum is to be paid by the federal defendants in these cases; and it is further

ORDERED that the motion of the American Mining Congress for attorneys fees and costs be, and the same hereby is, denied; and it is further

ORDERED that the joint motion of the Firestone and Union Carbide intervenor groups be, and the same hereby is, denied.

1. The government has raised one additional procedural point. It appears that § 1365(d) provides for the payment of any award directly to the citizen requesting the award, not, as plaintiffs here have indicated, directly to the citizen's attorneys. Where, as here it appears that two of plaintiffs' attorneys are now working for the government, it would be questionable for this court to award a fee against the government in favor of these attorneys. Therefore, any award made by this court in this case will be made directly to plaintiffs.